Remarks as prepared for delivery
Thank you, John, for the kind introduction and for the work that you do, and thank you all for the warm welcome. I also want to thank the Heritage Foundation for putting together this event on a timely and important topic: nationwide injunctions. I’m very happy to be here today. I think that many people are glad the furlough is over, not least of whom should be you all, because had this event occurred a couple of weeks ago, I would have been required by law to write my own jokes.
Before the panel dives into the substance of this issue, I’ll take a few minutes to set the stage. It’s no secret that the Department of Justice opposes the issuance of nationwide injunctions. But why is that? And how does this issue intersect with my own work there? I left private practice in 2017 to serve as the Assistant Attorney General leading the DOJ’s Office of Legal Policy (or OLP). One of OLP’s core functions is policy development and coordination for the Department of Justice, especially on issues that are top Departmental priorities. And one priority of this Department of Justice—from day one—has been upholding the rule of law.
From our strong criminal enforcement —especially on issues like human trafficking— to ending settlement payouts to third-party, favored groups that were not directly harmed by unlawful conduct, to our leadership on regulatory reform, you’ve seen, time and again, that this Department has made great strides in promoting the rule of law. And I’m confident that momentum will continue.
OLP has had the opportunity to be deeply involved in those efforts. A major initiative through which the Department is promoting the rule of law is our work shining a spotlight on, and arguing against, nationwide—sometimes called universal, or limitless (or as Justice Gorsuch called them “cosmic”)—injunctions. This is a rule of law issue. That’s why we care about it so much at the DOJ.
Nationwide injunctions, as we define them in the Justice Department, are injunctions that grant relief to parties outside the case, and outside of the class action framework, when such relief is not necessary to redress the plaintiff’s injuries. The core problem, in other words, is not so much the geographic scope of the injunction, but its reach far beyond the confines of the case or controversy before the court. Injunctive relief should be no broader than necessary to provide complete relief to the parties.
The entry of nationwide injunctions is a relatively recent phenomenon: nationwide injunctions did not exist even sixty years ago. Before 1963, no court in this country had issued such a broad injunction, and they were exceedingly rare until President Reagan took office. Even after that, by Justice Department estimates, courts issued an average of only 1.5 nationwide injunctions per year against the Reagan, Clinton, and George W. Bush administrations, and 2.5 per year against the Obama administration. In President Trump’s first year in office, however, judges issued a whopping 20 nationwide injunctions—an eightfold increase. This matches the entire eight-year total of such injunctions issued against President Obama during his two terms. We are now at 30, matching the total number of injunctions issued against the first 42 presidents combined.
At the Department of Justice, we believe that the proposition that courts must limit relief to the parties before them is noncontroversial. Every Justice Department—for decades—has recognized it. The Obama Justice Department repeatedly argued that “a trial court abuses its discretion by fashioning an injunction which is overly broad,” that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court,” and that “[t]his rule applies with special force where . . . there is no class certification.”
This Justice Department has challenged the entry of nationwide injunctions on constitutional as well as equitable grounds, and we will continue to do so at every appropriate opportunity. Why? For several reasons. We believe that the erosion of our rules and norms by those duty-bound to uphold the law is always a serious concern. And we believe that the rash of nationwide injunctions strikes at the heart of our democratic system. A nationwide injunction seriously impedes decision-making in the federal courts by interfering with percolation of a contested legal issue. It also invites unvarnished “judge-shopping,” undermining faith in our judiciary, and allows unelected district court judges to issue wholesale vetoes on the domestic policy and national security decisions of our elected officials. (I’m sure that some or all of these issues will be discussed in more detail by our panelists.) Again, this is not a partisan problem; it can be used—and has been used—against Presidents of both parties. But the frequency with which it has been employed against this President is unparalleled.
Justice Thomas, in his concurring opinion in Trump v. Hawaii issued last June, offered his view that “these injunctions”—nationwide injunctions—“are beginning to take a toll on the federal court system,” for several of the reasons I’ve just mentioned. He suggested that nationwide injunctions are “legally and historically dubious,” and urged his colleagues that “if federal courts continue to issue them, th[e] Court is dutybound to adjudicate their authority to do so.”
The Justice Department agrees. Our litigators are taking every appropriate opportunity to raise the question of the legality of nationwide injunctions to the appellate courts and ultimately to the Supreme Court. In furtherance of the Department’s commitment to advocating for properly tailored injunctive relief, last fall, former Attorney General Sessions issued litigation guidelines for Department of Justice attorneys involved in litigation challenging a federal government program, regulation, order, or law. This memorandum outlines a series of arguments against the issuance of nationwide injunctions—many of which I’m sure will be discussed today. Its purpose is to ensure that DOJ litigators make strong, consistent, and principled arguments against nationwide injunctions in cases that present the possibility of overbroad injunctive relief. Armed with the guidelines—and with no shortage of opportunities to put them into practice in litigation—the Department of Justice will continue to pursue judicial recognition of the legal and equitable limits on injunctive relief.
In closing, it is worth recalling James Madison’s Speech to the Virginia Ratifying Convention of 1788. There, he said, “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” Starting in the 1960s, we have seen a new power invented and slowly employed. It has now reached alarming frequency. The fact that both the Obama and Trump Administrations have spoken with one voice on this should speak volumes.
In the meantime, the debate about the propriety of nationwide injunctions continues. I am looking forward to a robust discussion this afternoon. Thank you again for having me.